New Commonwealth Religious Freedom Laws

The Commonwealth Attorney-General has released Exposure Drafts of a package of Federal Bills designed to improve religious freedom protections under Australian law, along with associated explanatory information. The legislation responds to the recommendations of the Ruddock Panel into Religious Freedom, released late in 2018. Public comment has been invited by 2 October, 2019.

The main item is the Religious Discrimination Bill 2019 (“RDB”), which broadly replicates the existing pattern of anti-discrimination laws enacted by the Commonwealth, but picking up for the first time at the Federal level the “protected characteristics” of “religious belief or activity”. Two ancillary Bills propose consequential amendments to other legislation, add some specific matters to be taken into account in objects clauses for other discrimination laws, and slightly amend or clarify the laws on charities and marriage.

The RDB is a lengthy document (68 clauses over 52 pages), with some complexities that will need to be unpacked. But I would like to offer a brief overview and an initial response, which will be followed up later by more detailed comments about particular issues. I can say, however, that it looks like being a worthwhile and helpful change which in general will further the cause of religious freedom (for both believers and non-believers) in Australia.

Overview

The Bill is set out in 9 Parts. After the preliminary material in Part 1 (including, as will be seen, some important definitions in s 5), Part 2 defines what is meant in general by “discrimination on the ground of religious belief or activity”. Two types of discrimination are prohibited (as is common in other such laws): “direct” discrimination under s 7, and “indirect” under s 8. Sections 10 and 11 then interestingly provide that certain types of behaviour are not discrimination (under s 10, activities of religious bodies in accordance with their faith, and under s 11, activities designed to “meet a need or reduce a disadvantage”.)

Part 3 then spells out explicitly the circumstances in which religious discrimination will be “unlawful”. After a preliminary provision in s 12, Division 2 spells out how discrimination operates in the work context, and Division 3 in “other areas” (education, access to premises, goods, services and facilities, accommodation, land, sport, clubs, requests for information, and Commonwealth activities.) Division 4 then provides a range of “exceptions and exemptions”, some general (Subdiv A), some relating to specific areas of public life (Subdiv B), others which will only exist if the Australian Human Rights Commission (“AHRC”) grants a specific exemption (Subdiv C).

Part 4 of the Bill contains only one provision, s 41. It is headed “Statements of belief do not constitute discrimination etc”. It seems clearly designed to head off any further possible actions like the one which was taken against Archbishop Julian Porteous in Tasmania, claiming that he had offended the complainant on the ground of their sexual orientation, by circulating material to Roman Catholic high schools setting out the Roman Catholic teaching on marriage. Indeed, this could hardly be clearer, since clause 41(1)(b) explicitly refers to, and over-rides, the relevant provision of the Tasmanian law, s 17(1) of the Anti-Discrimination Act 1998 (Tas).

Most of the Bill, when enacted, will be enforced through civil processes- a hearing before the AHRC followed, if appropriate, by a potential civil action before the Federal Court or the Federal Circuit Court. (This is achieved by the related Religious Discrimination (Consequential Amendments) Bill 2019, which adds a breach of Part 3 of the RDB to the definition of “unlawful discrimination” in s 3(1) of the Australian Human Rights Commission Act 1986 (Cth). Under that Act, s 49PO provides that a complaint of “unlawful discrimination” may be referred to these courts if it has not been successfully mediated before the Commission.)

But there are also a couple of criminal offences, under Part 5 of the RDB. These are “victimisation” under cl 43 (where someone has been punished, or threatened, because they have made a complaint under the Act), and a prohibition on “advertisements” signalling an intention to discrimination, under cl 44.

Part 6 sets up a “Freedom of Religion Commissioner” as part of the AHRC. Part 7 gives the Commission powers to investigate, research and educate on the area of religious freedom. Part 8 sets out the Constitutional powers justifying the legislation- the “main constitutional basis” under cl 57 is a series of international treaties, including the International Covenant on Civil and Political Rights, art 18 of which provides for strong protection of religious freedom. In case these powers are not adequate (there may be questions as to whether ICCPR art 18 has been fully implemented), then a range of alternative powers are noted, including the corporations power.

Part 9 contains a series of concluding “other matters”. One that I noticed was the interesting cl 65, which precludes any “right of action” under Parts 3 and 5 of the Bill, other than as set out in the Bill. This will cut off any argument (which might otherwise have been available) that the Bill can be said to create a civil claim based on “breach of statutory duty”. (This somewhat obscure tort action is something I have written on previously, eg here, and here. But as a result of cl 65 it will not be relevant for this Bill.)

Preliminary interesting provisions

While the RDB as a whole deserves further detailed unpacking, here are a few interesting provisions I have already noticed.

(a) The “Israel Folau clause”

While this is not its official title, it is fairly clear that cl 8(3) is designed to respond to the issues raised by the recent events involving Israel Folau, who was sacked as a football player for comments he had made on the Bible’s view of homosexual activity (among other acts of “spiritual rebellion” or “sin”), on his personal social media pages.

To put this in context, s 8 deals with “indirect discrimination”. It makes unlawful actions which may seem at first not to be based on religious belief or activity, but where the imposition of a “condition, requirement or practice” will have a “disadvantaging” effect on a believer over and above the effect it would have on others. One type of such condition would be, for example, a requirement that employees adhere to a “code of conduct” that prohibited comment, even outside the workplace, on Biblical sexual morality, which would offend others.

Such a condition may be imposed, however, if it is “reasonable”, under cl 8(1)(c). What cll 8(3) and (4) attempt to do is to specify certain conditions under which such a condition would not be reasonable:

(3) For the purposes of paragraph (1)(c), an employer conduct rule that: (a) is imposed, or proposed to be imposed, by a relevant employer; and (b) would have the effect of restricting or preventing an employee of the employer from making a statement of belief at a time other than when the employee is performing work on behalf of the employer; is not reasonable unless compliance with the rule by employees is necessary to avoid unjustifiable financial hardship to the employer.

(4) Subsection (3) does not apply in relation to a statement of belief: (a) that is malicious; or (b) that would, or is likely to, harass, vilify or incite hatred or violence against another person or group of persons; or (c) that is covered by paragraph 27(1)(b).

RDB clauses 8(3), 8(4)

The other important background to this provision is that the phrase “relevant employer” is defined in cl 5 to be restricted to a private employer whose revenue for the current or previous financial year is at least $50 million.

The clauses will then apply only to the largest of employers. It seems likely that Rugby Australia would qualify, but also other employers who in the past have been accused of imposing speech restrictions on employees on controversial moral issues (such as Qantas or Telstra).

I am still not sure what to make of these provisions. On the one hand, they are a good faith attempt to deal with a situation which has concerned many Australia employees. But the “exemptions” to the general rule that employees cannot be restrained in their off-duty speech are not entirely satisfactory. It seems odd to effectively allow an employer’s “sponsor” to “buy” the right to control employee’s speech by a threat to withdraw sponsorship (hence imposing “unjustifiable financial hardship”) if unpopular things are said. In particular, the other “exemption” under cl 8(4)(b) for speech that would “vilify” is decidedly unclear. The verb is not defined, and it really needs to be. I would support its presence if it means “incite hatred or violence”. But since both of those concepts are contained in other parts of the paragraph that is probably not what it means. The word “vilify” might be thought by some to include any speech which indicates that sexual activity contrary to the Biblical standard (in the context of a marriage between a man and a woman) is wrong. In that case it may nullify the practical impact of the provision as a whole. Certainly clarification is needed.

There is also, I think, a more subtle problem. If the Parliament has made specific provision for this type of action for large (over $50 million turnover) companies, might a court then conclude that any similar case involving a smaller company had to be rejected out of hand? If cll 8(3) & (4) were not present, it would be possible for an employee of any company, penalised for breaching a “no comments on these issues outside work” policy, to argue that they were being indirectly discriminated against in a way which was not reasonable, considering the factors in s 8(2). But the danger is that a court may say that this argument is not available once specific provision has been made for the issue in a way which deals with large companies. I would recommend that, if these clauses are retained, they should be accompanied by a caveat such as “without affecting the generality of s 8(2)”, or similar.

(b) Positive right for religious bodies in s 10

Another interesting provision is s 10:

10 Religious bodies may act in accordance with their faith

(1) A religious body does not discriminate against a person under this Act by engaging, in good faith, in conduct that may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of the religion in relation to which the religious body is conducted.(2) Religious body means: (a) an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion; or (b) a registered charity that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion (other than a registered charity that engages solely or primarily in commercial activities); or (c) any other body that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion (other than a body that engages solely or primarily in commercial activities). (3) This section applies despite anything else in this Act.

This seems a generally sensible provision. One benefit it has is that it makes it clear that activity of a religious body in accordance with its beliefs, is not “discrimination”, because for a religious body, choosing or selecting on the grounds of religious belief or activity is deciding on a “relevant” basis.

Still, there are some unresolved issues here which would be worth clarifying. Suppose a Christian school has a general policy of only employing teachers who share its Christian ethos. This would seem to be justifiable on the basis that the policy may “reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings”. (The phrase “reasonably be regarded” would not, it is hoped, invite a court or tribunal to themselves examine whether some doctrine or belief is “reasonable” or indeed “reasonably arguable on the basis of the sacred texts”. It should simply be a question as to whether the relevant interpretation is one that a “reasonable interpreter” could offer.)

But suppose the Christian school, while doing its best to mostly prefer Christian teachers, occasionally decides to employ qualified atheists for specific technical areas. Would it still be able to justify its policy of “preferring Christians where possible”? I think it should, but this aspect of the law may need further clarification.

Conclusion (for the moment)

There is much more to be said about the RD Bill, and associated laws. But not all can be said at once! Overall the Bill seems to me to be a good and fair effort to improve religious freedom in Australia, and worthy of support. There are points where its operation requires further clarification. But hopefully the process of public discussion and feedback will lead to these improvements before it finally passes the Parliament. I encourage readers to consult the legislation for themselves and to make relevant submissions to the Attorney-General’s Department in accordance with the invitation here:

Provide your submission to this consultation by emailing it to FoRConsultation@ag.gov.au. We prefer you to use the following template for your submission.